Opinion
F061455 Super. Ct. No. MCR021447
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. VALERIE MOZ, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Madera County. David D. Minier, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
After finding that defendant Valerie Moz violated her probation, a trial court revoked probation and executed a previously imposed sentence. On appeal, Moz challenges various aspects of the judgment. She contends that (1) the denial of one-for- one conduct credit on the basis of a dismissed, unproven prior strike was unauthorized and a denial of due process; (2) the trial court's consideration of the dismissed prior-strike allegation violated the plea agreement; and (3) the trial court improperly imposed a fee for the presentence report.
We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
On September 27, 2006, the Madera County District Attorney filed an information against Moz charging her with a single count of bringing a controlled substance into a state prison in violation of Penal Code section 4573. It was further alleged that Moz had one prior strike conviction (§ 667, subds. (b)-(i)) (a conviction for § 245, subd. (a)(2), in 2002) and had served two prior prison terms (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code.
On September 18, 2008, pursuant to a plea agreement, Moz entered a plea of no contest to a felony violation of Health and Safety Code section 11378, subdivision (a) (amended count 2), and admitted one prior prison term. In particular, Moz admitted she had been convicted of a violation of section 245, subdivision (a)(2), on July 8, 2002, in Kern County. Count 1 and the remaining enhancement allegations of a prior strike and another prior prison term were dismissed. The parties agreed Moz would receive a four-year sentence, to be stayed, and she would be referred to felony drug court.
On January 6, 2009, the trial court imposed the upper term of three years on count 2, plus one year for the prison prior, for a total of four years in state prison. The court suspended execution of sentence and Moz was placed on formal felony probation for five years. Moz was required to serve 155 days in jail and to enter a drug treatment program.
On April 4, 2009, the Madera County probation officer filed a petition for revocation of probation based on Moz's failure to report for scheduled office visits and her admitted use of methamphetamine and marijuana, among other things. On July 7, 2009, the trial court revoked and reinstated probation. Ten days later, a petition for revocation of probation was filed based on Moz's termination from a drug treatment program for aggressive behavior. On August 21, 2009, the trial court revoked and reinstated probation again.
On December 30, 2009, the Madera County probation officer filed a third petition for revocation of probation. The petition alleged that Moz failed to report to the Madera County Probation Department and her location was unknown. After a hearing, the trial court found Moz in violation of her probation.
On October 25, 2010, the trial court revoked probation, denied reinstatement, and executed the previously imposed sentence of four years in prison. The court also imposed various fines and fees, including a felony presentence report fee of $375.
On November 23, 2010, the trial court held a hearing on the computation of time credits. Moz argued she was entitled to one day's conduct credit for each day she actually served in jail pursuant to section 2933. The prosecuting attorney argued that Moz was only entitled to one-for-two conduct credit because she had a prior conviction for a serious or violent felony. The trial court agreed with the prosecuting attorney and credited Moz with 666 days, comprised of 444 days of actual local time served and 222 days of local conduct credits.
DISCUSSION
Under section 2900.5, a defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) A defendant also may earn additional "conduct credit" for willingness to work and for good behavior. (§ 4019, subds. (b) & (c); see People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Between January 25 and September 28, 2010, pursuant to section 4019, a defendant could accrue presentence conduct credit at a rate of four days for every four days spent in actual custody (i.e., a rate of one-for-one). (Former § 4019, subds. (b)(1), (c)(1) & (f); Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010.) This one-for-one rate did not apply to any defendant who (1) was required to register as a sex offender or (2) was being committed to prison for a serious felony or (3) had a prior conviction for a serious or violent felony. These defendants accrued conduct credit at the less generous rate of two days for every four days spent in actual custody (i.e., a rate of one-for-two). (Former § 4019, subds. (b)(2), (c)(2) & (f).)
The Legislature amended section 4019, effective September 28, 2010, changing the rate of accrual for all defendants to the less generous rate of one-for-two. (Stats. 2010, ch. 426, § 2; § 4019, subds. (b), (c), & (f).) This amendment expressly applied to crimes committed on or after the effective date of the act. (§ 4019, subd. (g).) At the same time, the Legislature amended section 2933, subdivision (e), to provide one day of conduct credit for each day a defendant spends in custody prior to incarceration in state prison. (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010; § 2933, subd. (e)(1) [prisoner "shall have one day deducted from his or her period of confinement for every day he or she served in a county jail"]). Like former section 4019, however, defendants who are required to register as sex offenders, are committed for a serious felony, or have a prior conviction for a serious or violent felony are not entitled to the one-for-one rate for accrual of conduct credit. (§ 2933, subd. (e)(3).) With respect to those defendants, conduct credit is calculated under current section 4019, which provides the less generous one-for-two rate. (Ibid; § 4019, subd. (f).)
Section 4019 has been amended again, operative on October 1, 2011. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011.) For purposes of this decision, however, we refer to the version of the statute in effect prior to September 28, 2010, as "former section 4019" and the version made effective September 28, 2010, as "section 4019" or "current section 4019."
Section 2933 has been amended again. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16, eff. Sept. 21, 2011.) In this decision, "section 2933" refers to the statute made effective on September 28, 2010.
Moz's sentence was executed after the effective date of section 2933. She admitted a prior conviction of assault with a firearm, which qualifies as a serious felony. (§ 1192.7, subd. (c)(31).) Consequently, under section 2933 and taking into account her prior serious felony conviction, Moz accrued conduct credit at the less generous one-for-two rate. (§ 2933, subd. (e)(3); § 4019, subd. (f).) I. Considering Moz's prior serious felony conviction in calculating conduct credit On appeal, Moz contends she was entitled to conduct credit calculated at the one-for-one rate provided in section 2933, subdivision (e)(1). She argues that the allegation of a prior strike could not be used to make her ineligible for the more generous rate because that enhancement allegation was dismissed.
A. Section 2933, subdivision (e)
As a preliminary matter, the People argue that section 2933 does not apply in Moz's case. The People do not explain which statute the trial court did apply in calculating presentence conduct credit. Current section 4019 does not apply because it only applies to crimes committed on or after September 28, 2010. (§ 4019, subd. (g).) In any event, the People assert that the trial court is not responsible for calculating or granting credits under section 2933; rather, these credits fall within the purview of the California Department of Corrections and Rehabilitation (CDCR). We reject this argument.
We recognize that, "[o]nce a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration" (People v. Buckhalter (2001) 26 Cal.4th 20, 31); the Director of the CDCR has the duty of determining postsentence worktime credit (People v. Mendoza (1986) 187 Cal.App.3d 948, 954); and subdivisions (a) through (d) of section 2933 deal with the postsentence credit scheme. However, nothing in section 2933 compels the conclusion that presentence conduct credit under subdivision (e) of section 2933 can only be determined by the Director of the CDCR. Section 2933, subdivision (e)(1), provides that a qualifying defendant "shall have one day deducted" for every day "from the date of arrest" until the defendant begins serving time in state prison, but the statute is silent on the question of what entity calculates this credit.
"Worktime" credit refers to additional time credit a prisoner may be eligible to earn in state prison. (People v. Saibu (2011) 191 Cal.App.4th 1005, 1011-1012.) It is analogous to conduct credit, the additional time credit a defendant may earn presentence.
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Section 2900.5, subdivision (d), on the other hand, requires the sentencing court to determine a defendant's time credit for time spent in custody prior to sentencing. Section 2900.5, subdivision (a), provides: "[W]hen the defendant has been in custody, including, but not limited to, any time spent in a jail, ... all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, ... shall be credited upon his or her term of imprisonment ...." Section 2900.5, subdivision (e), provides: "It shall be the duty of any agency to which a person is committed to apply the credit provided for in this section for the period between the date of sentencing and the date the person is delivered to the agency."
While section 2900.5 does not refer to section 2933, it also does not preclude a trial court's application of section 2933. Section 2900.5, subdivision (a), does expressly refer to credit earned "pursuant to Section 4019," and the conduct credit provided in section 2933, subdivision (e), is the same kind of credit, that is, presentence conduct credit. Further, subdivisions (d) and (e) of section 2900.5 indicate that execution of sentence is the appropriate dividing line between a trial court's responsibility for determining conduct credit and that of the prison authorities. For these reasons, we hold that a trial court's duties under section 2900.5 include calculating and awarding presentence conduct credit pursuant to section 2933, subdivision (e).
B. Pleading and proof
Moz argues she was entitled to one-for-one conduct credit because a prior conviction, such as her prior serious felony conviction, cannot be used to increase punishment unless it has been pleaded and proved. She relies on People v. Lo Cicero (1969) 71 Cal.2d 1186, 1194 (Lo Cicero), in which our Supreme Court held that, when a prior conviction is used to preclude eligibility for probation, the prior conviction should be charged and proved. The court reasoned:
"In People v. Ford (1964) 60 Cal.2d 772, we held that 'before a defendant can properly be sentenced to suffer the increased penalties flowing from . (a) finding ... [of a prior conviction] the fact of the prior conviction ... must be charged in the accusatory pleading, and if the defendant pleads not guilty thereto the charge must be proved and the truth of the allegation determined by the jury, or by the court if a jury is waived.' [Citation.] The denial of opportunity for probation involved here is equivalent to an increase in penalty, and the principle declared in Ford should apply." (Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.)
The implicit premise of Moz's argument is that denial of one-for-one conduct credit is "equivalent to an increase in penalty." (Lo Cicero, supra, 71 Cal.2d at p. 1193.) We are not persuaded, however, that accrual of conduct credit at a less generous rate is equivalent to an increase in penalty. We find two cases, In re Pacheco (2007) 155 Cal.App.4th 1439 (Pacheco), and People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia), to be instructive.
In Pacheco, the defendant pleaded guilty to inflicting corporal injury to a cohabitant and admitted the enhancement allegation of infliction of great bodily injury. The trial court struck the additional punishment for the great-bodily-injury enhancement, pursuant to section 1385, subdivision (c)(1). (Pacheco, supra, 155 Cal.App.4th at p. 1442.) The CDCR later limited the defendant's accrual of worktime credit to 15 percent pursuant to section 2933.1, subdivision (a), which provided: "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 [i.e., a "violent felony"] shall accrue no more than 15 percent of worktime credit, as defined in Section 2933."
The defendant in Pacheco challenged the CDCR's use of the great-bodily-injury enhancement to render his conviction a violent felony and to reduce his worktime credit. (Pacheco, supra, 155 Cal.App.4th at p. 1443.) He argued that subjecting him to limited worktime credit amounted to additional punishment. (Id. at p. 1444.) The court rejected his argument, explaining:
"A reduction in the worktime credits allowed by section 2933.1 may feel like 'additional punishment' to a prisoner, a result seemingly inconsistent with the sentencing court's order in this case [striking the enhancement penalty] under section 1385. However, a reduction in credits is not considered 'punishment' under the law. Rather, such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs." (Pacheco, supra, 155 Cal.App.4th at p. 1445.)
Similarly, in Garcia, two codefendants argued they had the right to have a jury determine whether their burglary conviction was a "violent felony" because the violent-felony determination resulted in limiting presentence conduct credit to 15 percent under section 2933.1, subdivision (c). (Garcia, supra, 121 Cal.App.4th at pp. 275-276.) In rejecting this argument, the court reasoned:
"Contrary to [the defendants'] contention, section 2933.1, subdivision (c)'s limitation on presentence conduct credits is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary. [Citation.] Rather, the provisions for presentence conduct credits function as a sentence 'reduction' mechanism .... [Citations.] The limitation on conduct credits for defendants convicted of violent felonies represents a legitimate policy decision by the Legislature to provide greater protection to the public from dangerous offenders who might otherwise be paroled at an earlier date. [Citation.]" (Garcia, supra, 121 Cal.App.4th at p. 277.)
These cases are persuasive. Accrual of time credit at a reduced rate—whether postsentence worktime credit or presentence conduct credit—is not equivalent to an increased penalty under the law. As a result, we conclude that section 2933 does not implicitly require pleading and proof of ineligibility for one-for-one conduct credit. Here, Moz admitted the prior conviction that qualified as a serious felony, and the trial court properly calculated her conduct credit taking into consideration the prior serious felony conviction.
II. Plea agreement
Moz also argues that the trial court's consideration of the dismissed prior-strike allegation in its determination of conduct credit was a breach of the plea agreement. We have concluded, however, there is no pleading requirement for taking prior convictions into account when calculating conduct credit. As a result, the dismissal of the strike allegation, by itself, did not preclude the trial court from considering the prior conviction in calculating Moz's conduct credit. The parties in this case did not agree to a one-for-one rate for accruing conduct credit or specify how conduct credit would be determined. We will not assume the parties agreed the trial court was precluded from considering Moz's prior serious felony conviction in determining conduct credit. (People v. Feyrer (2010) 48 Cal.4th 426, 438 ["every term of a plea agreement should be stated on the record"].) Moreover, as the People point out, Moz had no expectation of accruing conduct credit at a one-for-one rate because, at the time she entered the plea, it was only possible to earn presentence conduct credit at a rate of one day for each two actual days in custody. (§ 4019, subd. (f), added by Stats. 1982, ch. 1234, § 7.)
Even so, Moz argues the trial court was not allowed to take into consideration her prior conviction because the prior-strike allegation was dismissed as part of a plea agreement. She cites People v. Harvey (1979) 25 Cal.3d 754 (Harvey), in which the trial court relied on the alleged facts of a robbery charge that had been dismissed pursuant to a plea agreement to sentence the defendant to the upper term for an unrelated robbery count. (Id. at pp. 757-758.) Our Supreme Court reversed the sentence, reasoning:
"In our view, under the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three [the dismissed robbery charge]
for purposes of aggravating or enhancing defendant's sentence. Count three was dismissed in consideration of defendant's agreement to plead guilty to counts one and two. Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, supra, 25 Cal.3d at p. 758.)
Harvey is distinguishable. In Harvey, the sentencing court used the factual allegations of a dismissed charge to enhance the defendant's sentence. Here, Moz's prior conviction was not used to enhance her sentence. (See Garcia, supra, 121 Cal.App.4th at p. 277 ["limitation on presentence conduct credits is not a sentencing enhancement"].) Further, the sentencing court in Harvey considered the facts and circumstances of an unrelated, current robbery charge that was dismissed and not admitted. Here, in contrast, Moz cannot dispute that she has a prior serious felony conviction; she admitted she was convicted of assault with a deadly weapon in 2002.
Moz's situation is more akin to cases in which the trial court strikes a prior-conviction enhancement pursuant to section 1385. In these cases, the dismissal of a prior-conviction allegation "ameliorates the effect of the dismissed charge or allegation," but "[does] not wipe out the fact of the prior conviction ...." (In re Varnell (2003) 30 Cal.4th 1132, 1138 (Varnell).) In Varnell, the trial court dismissed an alleged prior strike pursuant to section 1385 but used the fact of the prior conviction to find the defendant ineligible for drug treatment under Proposition 36 (§ 1210.1, subd. (b)(1)). (Varnell, supra, at p. 1135.) Our Supreme Court approved the trial court's consideration of the prior conviction, holding that "a trial court's power to dismiss an 'action' under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation ...." (Id. at p. 1149.)
The trial court's consideration of Moz's prior conviction in calculating conduct credit under section 2933 is similar to the sentencing court's use of the "uncharged sentencing factor" of a prior conviction to render the defendant ineligible for statutory drug treatment in Varnell. By analogy, since the dismissal of the strike allegation against Moz did not "wipe out the fact of the prior conviction" (Varnell, supra, 30 Cal.4th at p. 1138), the trial court properly considered Moz's prior conviction when it calculated her conduct credit.
For these reasons, we conclude the trial court did not breach the plea agreement by taking into account Moz's prior conviction in determining her conduct credit.
III. Presentence report fee
Finally, Moz objects to the trial court's order imposing a fee for the presentence report.
Section 1203.1b, subdivision (a), provides:
"In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, ... the probation officer, . taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost ... of conducting any preplea investigation and preparing any preplea report .... The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver."Moz argues that there is no evidence that the trial court or anybody else inquired into her ability to pay or that she was informed of her right to a hearing and knowingly waived that right. Moz, however, has forfeited this argument.
At the October 25, 2010, hearing, after revoking and declining to reinstate probation, the trial court expressly imposed various fines, including "the $375 supplemental report fee," as provided in a probation officer's report and recommendation. Neither Moz nor her counsel objected to the imposition of the fee. Moz's failure to object forfeits the claim on appeal. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1076.)
Moz urges us to follow People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, in which the court held that failure to object to the imposition of fees did not forfeit a claim of insufficient evidence of ability to pay. We decline to do so. Rather, we agree with the court in People v. Valtakis, supra, 105 Cal.App.4th at page 1076, which reasoned, "[t]o allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive." In this case, after the October 25, 2010, hearing, the trial court held another hearing on the issue of calculating conduct credit. Moz could have objected to the fees at the same time. We see no reason to allow her to raise the fee issue for the first time on appeal.
DISPOSITION
The judgment is affirmed.
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Wiseman, Acting P.J.
WE CONCUR:
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Levy, J.
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Cornell, J.